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State Secrets Might Get a Little More Secret

The state secrets privilege has been the topic of significant academic and judicial focus, particularly in the post-9/11 era in which invocations of the privilege were seen by critics as a means to protect the government against liability in a variety of cases alleging torture, rendition and warrantless surveillance.

The most recent state secrets issue arises in the context of a civil suit to which the government is not a party: Restis v. United Against Nuclear Iran is a defamation suit brought by businessman Victor Restis and others against United Against Nuclear Iran (UANI), an advocacy group that promotes the imposition of stronger sanctions against the Iranian government.  UANI publicly claimed that Restis had conducted business with the Iranian government, which Restis denied, prompting Restis’s defamation suit in the Southern District of New York.

In Restis, the United States government has intervened as a third party, asserting the state secrets privilege to not just to prevent disclosure of specific evidence, but to seek dismissal based on the assertion that UANI’s defense would involve the disclosure of documents that contain state secrets.  Such third-party interventions have occurred occasionally and the government’s efforts have largely met with success: the 1985 Fourth Circuit decision in Fitzgerald v. Penthouse International Limited and the 1992 Fifth Circuit decision in Bareford v. General Dynamics Corporation serve as examples in the pre-9/11 era, and the 2010 Ninth Circuit en banc decision in Mohamed v. Jeppesen Dataplan serves as an example from jurisprudence after 9/11. These are all cases where the government prevailed as a third-party intervenor, securing dismissal based on the state secrets privilege.

In all of these cases, the general factual basis for invocation of the state secrets privilege was made clear in the government’s public filings or was known to the public through media or other sources.  For example, in Jeppesen, in which plaintiffs alleged Jeppesen Dataplan of being complicit in the government’s program of extraordinary rendition, the general contours of the extraordinary rendition program and the fact that private companies like Jeppesen Dataplan (a Boeing subsidiary) were involved in transporting detainees as part of the government’s program were known to the public through the media and through plaintiffs’ filings.  Further, the government’s motion to intervene and seek dismissal included a general account of what types of secrets were at issue.  Whether one agreed with the invocation of the privilege or not, it was clear what kinds of state secrets were likely involved in the Jeppesen litigation.  This enabled the ACLU, representing Mohamed and the other plaintiffs in the suit, to file a substantial and well-reasoned memorandum in opposition to the government’s motion to dismiss.

This ability to contest—one that proved successful, at least for some time, in Jeppesen—is what makes the government’s position in Restis different from its previous third-party interventions based on state secrets.  Here, for the first time in the history of state secrets litigation in which the government is not a party, there is zero indication of what type of sensitive information is at risk of disclosure, why documents containing state secrets might be in UANI’s possession, or what the government’s possible interest in the matter is.  When the government is a party to a suit, it seems clear what its interest in the litigation is, but there is no such obvious or natural understanding in Restis.  The government has asserted that “the concerned federal agency, the particular information at issue and the bases for the assertion of the state secrets privilege cannot be disclosed.”  The government’s motion instead focused largely on its compliance with the procedural requirements for invoking the state secrets privilege, set up by the seminal U.S. Supreme Court case of Reynolds v. United States in 1953, and compliance with the Department of Justice’s internal, nonpublic review process for invoking the state secrets privilege, established by Attorney General Holder in 2009.

The government has invoked Reynolds for the proposition that the court should not force public disclosure through its filings of the very thing that the government deems necessary to keep secret.  Under the government’s logic, such disclosure can be made solely in an ex parte submission to be reviewed in camera.  In other words, the government has asserted that it has the right to gut the adversarial process entirely when it comes to the state secrets privilege.

Unsurprisingly, plaintiff’s counsel objected vehemently to the government’s motion on these grounds during a hearing on the invocation of the privilege. Counsel offered guidance from Judge Sack on the Second Circuit, who has opined that judges should take an active role in adjudicating claims of the state secrets privilege and enabling the adversarial process, rather than accepting the government’s position as definitive (a judicial posture for which I have advocated elsewhere).

Judge Ramos was aware of the deficit that the government’s position creates for plaintiffs, noting that plaintiff’s counsel had the opportunity to oppose the government’s motion, but that “their hands will be tied behind their backs because they will be swinging at moving targets or shadow targets or no targets” since plaintiff’s counsel and the public have no idea what the government’s invocation is based on.

And this is the crux of the issue.  The state secrets privilege is already extremely powerful: it can lead to the dismissal of civil suits at the pleadings stage where the government is not even a party. There are numerous cases in which the government has overreached and abused this privilege. In Reynolds itself, the government invoked the privilege and asserted that national security-related state secrets would be compromised if the government were forced to provide the flight accident report from the plane crash in which the plaintiffs’ husbands were killed, because of purportedly sensitive military equipment on board.  The Supreme Court in Reynolds dismissed the suit based on these government assertions.  Decades later, declassification of the relevant documents revealed that the flight accident report contained no sensitive information, but did contain evidence of government error, precisely what the plaintiffs had asserted.

We don’t know if the government’s ex parte submission in Restis includes the underlying documents that are allegedly too sensitive to describe generally in public filings. We can hope they do, so that Judge Ramos—even if he keeps information from plaintiff’s counsel—can make a reasoned determination as to whether the government’s invocation of the privilege is appropriate and that dismissal is warranted.

But what is at stake here is larger than just the disposition of Restis. The state secrets privilege rightly came under significant criticism during the Bush administration because of the sweeping invocation of the privilege in cases involving torture and extraordinary rendition.  Plaintiffs in those cases—which were dismissed at the pleadings stage—were left with no access to the courts to press their claims.  Critiques focused both on gross human rights violations for which the government avoided accountability, and the acquiescence to doctrines that enabled the government to use the state secrets privilege to gut the adversarial process and quash judicial avenues for seeking civil redress.

President Obama, for his part, has claimed frustration with the Bush administration’s broad use and abuse of the state secrets privilege. He promoted the 2009 Holder guidelines as strengthening internal review processes and committing the administration to greater adherence to the rule of law. However, publicly available evidence suggests that even with the Holder guidelines in place, the Obama administration has not done any better when it comes to overly broad and inappropriate invocations of the privilege.

In the Mohamed case, the Obama administration picked up right where the Bush administration left off in early 2009, defending the invocation of the privilege in a case where Mohamed and other detainees were subjected to extraordinary rendition and torture to elicit confessions of terrorism-related activity.  Mohamed was eventually cleared of all charges.  More recently, in Ibrahim v. Department of Homeland Security, the Obama administration was unsuccessful in its invocation of the state secrets privilege to seek dismissal of a suit by a Stanford PhD student who was erroneously included on the government’s no-fly list and was denied re-entry into the United States after spending time in Malaysia.  Judge Alsup of the Northern District of California made clear that the government had overreached in its invocation of the state secrets privilege.

Because of the opacity of the government’s public disclosures, we—but more importantly, plaintiff’s counsel—are left to speculate as to the nature of the government’s interest in Restis.  In cases in which the government is a party or in third-party interventions in which there is publicly available information regarding the government’s interest, like Mohamed, parties are aware of at least some aspects of the government’s interest and can litigate accordingly.  Here the government is asking that plaintiffs, as Judge Ramos observed, fight blindfolded and with their hands tied behind their back.  Should plaintiff’s counsel be put in a position in which it must prepare a motion in opposition that defends against every conceivable government interest at stake?  If so, it may be that a precedent is being set that state secrets-related litigation can largely be a non-adversarial process, something that has recently come under fire in other contexts.

It seems unlikely that accountability over human rights violations is at issue, but in some respects the concern over precedents for executive power is stronger in Restis than in previous state secrets cases.  Although there’s nothing in the case law that actively prevents Judge Ramos from relying solely on the government’s ex parte, in camera disclosure, history and recent invocations of the state secrets privilege by the Obama administration suggest that such a precedent will likely lead to even greater government overreach—and further abuse.

Judge Ramos raised two other issues in the hearing on state secrets that could help resolve this matter in the middle ground: first, should plaintiff’s counsel, who has some level of security clearance, be able to have access to government’s ex parte submission so that he can argue in camera against the motion to dismiss?  Judge Ramos asked the parties to brief this option, which would retain the adversarial process and should obviate much of the concern surrounding the lack of public disclosure. The government’s response at the hearing was that it was not customary to allow for this type of access, and it seems likely that the government will strongly oppose setting a precedent in which other counsel will have access to its in camera submissions on these types of matters.

Second, if the court both upholds the government’s invocation of the state secrets privilege and finds that Restis’s allegations of UANI’s defamatory statements are true, what remedy would be appropriate?  Judge Ramos asked the parties to consider whether injunctive relief (i.e., preventing UANI from repeating the defamatory statements in the future) would be appropriate.  If the state secrets privilege were upheld, UANI would not be able to defend itself against a claim for monetary damages, but this would offer the court the option of granting some sort of relief for Restis if his allegations are true.

Both issues reflect a thoughtful approach to this type of state secrets litigation by Judge Ramos, giving rise to possible avenues for resolving invocations of the state secrets privilege that allow for something other than an all-or-nothing approach that has allowed for misuse and a lack of accountability in the past.

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About the Author

is a Professor of Law and the Associate Dean for Faculty Development and Intellectual Life at Western New England University School of Law.